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Equitable Exceptions to Enforceability of
Restrictive Covenants by Injunction in Michigan
by William E. Hosler*
I. Overview
This article focuses on the equitable exceptions to the
enforceability of restrictive covenants by injunction. This
topic is generally addressed in the author’s previous articles reviewing the law of restrictive covenants and deed
restrictions in Michigan.1
A restrictive covenant or deed restriction represents a
contract between the buyer and the seller of property.2 If
a restrictive covenant or deed restriction is unambiguous,
courts are to enforce that restriction as written unless the
restriction contravenes law or public policy, or has been
waived by acquiescence to prior violations.3
However, in Michigan, there are three equitable exceptions to the general enforcement by injunction of valid, unambiguous deed restrictions.
The Michigan Supreme Court created these three exceptions in 1957 in Cooper v Kovan,4 and they remain the
current standard:
(1) Technical violations and absence of substantial injury;
(2) Changed circumstances; and
(3) Limitations and laches.
1 William E. Hosler, Deed Restrictions and Restrictive Covenants
in Michigan–2012, 38 Mich Real Prop Rev 7 (Winter 2012);
William E. Hosler, Deed Restrictions in Michigan, 34 Mich
Real Prop Rev 37 (Spring 2007); William E. Hosler, Restrictive
Covenants in Michigan, 25 Mich Real Prop Rev 81 (Summer
1998).
2 Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham,
479 Mich 206, 212; 737 NW2d 670 (2007).
3 Id at 214.
4 349 Mich 520; 84 NW2d 859 (1957).
Defining and uniformly applying these exceptions is
an elusive task. More so than in perhaps any other area
of real property law, the interpretation, enforcement, and/
or avoidance of deed restrictions depends on the unique
facts of each case.
II. Application of Cooper v Kovan exceptions
A. Technical violations and absence
of substantial injury
Webb v Smith (after second remand)
In Webb v Smith,5 the defendants in 1988 purchased
one-half of a lakeshore lot in a residential subdivision. A
home owned by third parties already existed on the other
half of this lot. Defendants began construction of their
home in March 1989. The deed to defendants’ property
did not contain restrictions that appeared on deeds to the
other lots in the subdivision.
The plaintiffs owned lots adjacent to defendants’ lot.
Plaintiffs believed that the construction of defendants’
home would violate both the subdivision’s negative covenants and the township’s zoning ordinances. The subdivision covenants at issue stated: “No building or dwelling
shall be placed closer than 20 feet from the front lot line,
and not more than one building shall be used for dwelling
purposes on each lot.” Plaintiffs also believed that defendants’ home would partially block their view of the lake.
In April 1989, plaintiffs filed suit to force defendants to
remove their home.
5 224 Mich App 203; 568 NW2d 378 (1997); leave to appeal
denied, 459 Mich 862; 584 NW2d 924 (1998).
* William E. Hosler is a shareholder in the Birmingham, Michigan law firm Williams, Williams, Rattner & Plunkett, P.C.
His practice concentrates on transactions and litigation involving real property and title insurance matters. He wishes to
thank law student Brittney Kohn for her assistance in the preparation of this article.
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After a bench trial in May 1989, and subsequent litigation spanning six years, on second remand from the
Court of Appeals and after an evidentiary hearing, the
trial court ruled that defendants’ lot was subject to the
one dwelling per lot restriction, stating that “plaintiffs’
[sic] had a right to expect that no dwelling would ever rest
upon the defendants’ lot.”6 The court rejected defendants’
argument that the violation did not cause substantial injury, noting that plaintiffs had suffered losses of view,
light, and privacy. The court added: “When one considers that plaintiffs have a right to an empty lot next door,
it becomes very difficult to argue that their injury is not
substantial.”7 The court also rejected the defendants’ argument that the plaintiffs’ request for the injunction should
be denied because the restrictions’ purposes of privacy and
aesthetics could not be accomplished because the neighborhood conditions had changed. The trial court ordered
defendants to demolish their house from the lot.
On appeal, the Court noted that courts regularly enforce injunctions based on valid restrictions and because
the parties’ damages are immaterial. The trial court did
not err in failing to apply a balancing test. The Court then
addressed the three equitable exceptions from Cooper v
Kovan. It found that the third exception (limitations and
laches) was not at issue in the case.
In considering whether the “technical violations and
absence of substantial injury” exception applied, the Court
noted that no Michigan court had yet defined a “technical
violation” in this context. Accordingly, the Webb Court
adopted the definition from a Louisiana case which characterized a technical violation of a negative covenant as a
“slight deviation” or a violation that “’can in no wise, we
think, add to or take from the objects and purposes of the
general scheme of development. . . .’”8
The Webb Court found that no exception to enforcement applied. The defendants’ house was built on a halflot where no house was allowed. The Webb Court found
that this presented more than a “slight deviation” from the
terms of the covenants. Courts give effect to the instrument as a whole when interpreting restrictive covenants.9
The Court held that “if any doubt arises surrounding the
meaning of the restrictions the court must consider the
sub-divider’s intention and purpose.”10 The restriction
clearly permitted only one dwelling per lot. The defendants’ house detracted from the covenants’ stated purposes
of regulating construction to guarantee a level of privacy
and aesthetic enjoyment to the subdivision’s landowners.
Further, testimony reflected that plaintiffs’ property was
impaired because defendants’ house obscured their view
of the lake and that the resulting damage amounted to at
least $5,500, which the Webb Court decided was in fact a
substantial injury.
6 224 Mich App at 207-08 (quoting trial court).
10 Webb, 224 Mich App at 212.
7 Id at 208 (quoting trial court).
Gamble v Hannigan
In Gamble v Hannigan,11 another building restriction
case, the defendant purchased a platted lot on a lake intending to build a residence. The recorded restrictions included a requirement that no dwelling house or structure
(including porches and eaves) shall be located “nearer than
20 feet from the crest of the land approaching the lake.”
Given the unique location of the lot defendant was interested in, she was given assurances before she bought that
some “concessions” would be made regarding the restriction. After she bought, the building committee approved
the defendants’ construction plan, and provided the defendant with an interpretation of the building setback
line to the water and a description of the location of the
concrete marker–a description which was [the Court later
observed], “to be charitable, slightly erroneous,”12 After
the house was nearly completed, a dispute over the location of the porch ensued and the plaintiffs (the developers
of the subdivision) sued to enjoin further construction of
the porch and force removal of the portion already built.
The appellate court noted that “the most sensible
manner in which to resolve cases of this nature is to consider each case on its peculiar merits.”13 The Court found
that given the building committee’s inept description of
the concrete marker’s location, and the fact that a significant amount of the construction of the offending porch
had been completed, it was “disposed to resolve this case
on grounds other than the technical violation of the building committee’s permission.”14 Rather, the “Court chooses to look at the stated purposes behind the covenants and
restrictions and then determine the impact of defendant’s
11 38 Mich App 500; 196 NW2d 807 (1972).
8 Id at 212.
12Id at 503.
9 Rofe v Robinson (after second remand), 126 Mich App 151,
157; 336 NW2d 778 (1983).
14Id (emphasis added).
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13Id at 504.
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porch on the achievement of those purposes.”15 The Court
then, after quoting from the stated purpose of the covenants and restrictions from the recorded documents, decided that the defendant’s porch would not obstruct the
view of the lake from adjoining property, as was claimed below, any more than pre-existing structures affected the view.
This published opinion is illustrative of the flexible approach Michigan courts take when interpreting the facts of
a dispute involving a restrictive covenant. In a case seeking
a technical violation exception, the judge (or panel) is looking to see whether applying that exception to enforcement
of a restriction would accomplish what that particular judge
(or panel) determines was the object and/or purpose of the
restriction within the general scheme of development.
B. Changed circumstances
Rofe v Robinson (after remand)
In Rofe v. Robinson,16 the plaintiffs and other property owners sued the defendant developers to enforce deed
restrictions limiting the use of subdivision lots to single
family residential purposes and for an injunction enjoining the construction of office buildings on certain subdivision lots. The trial court upheld the restrictions and issued a permanent injunction. The appellate court reversed
on the ground that the character of the subdivision had
changed. The Michigan Supreme Court held that changes in a highway bordering the subdivision and partial
condemnation along the highway had not so changed the
character of the subdivision as to subvert the purpose of
the deed restrictions and render enforcement inequitable,
nor had a change in zoning overridden the restrictions.
The Court was not persuaded that use of one of the
45 lots for office purposes had so changed the character
of the subdivision as to render the restrictions inequitable.
That structure was built as a residence and had previously
been used as such. The use of that building for office
purposes had not materially changed the character of the
subdivision, which remained substantially residential.
Likewise, the evolution and widening of Telegraph
Road did not justify lifting the restrictions. The widening of Telegraph Road had not changed the character of
the subdivision, which was still substantially residential.
“The fact that substantial changes in the character of the
neighborhood outside of the subdivision have taken place
does not make it inequitable to enforce the restrictions.”17
15 Id at 505.
16 415 Mich 345; 329 NW2d 704 (1982).
17 Id at 353.
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Webb v Smith (after second remand)
The Webb v Smith18 Court also considered but rejected
the defendant’s argument that enforcement of the restrictions against defendants should be equitably excused due
to the allegedly changed circumstances in the subdivision
so as to make enforcement of the covenants inequitable.
The evidence did not establish that the covenants’ purposes could no longer be accomplished. Although defendants
relied on testimony regarding the general growth of the
area, such testimony was insufficient to excuse a covenant
violation.19 The Court noted that “if something more
than general growth was not required, it would place all
residential restrictions in substantial jeopardy.”20
C. Limitation and Laches
Rofe v Robinson (after second remand)
On remand from the Michigan Supreme Court, the
court of appeals in Rofe v. Robinson21 ruled on the issues of
laches, waiver, and interpretation of deed restrictions that
were not considered in the Court’s previous decisions.
In determining whether a party is guilty of laches,
each case must be determined on its own particular facts.22
The doctrine of laches was explained in In re Crawford Estate, as follows:
“Laches is an affirmative defense which depends
not merely upon the lapse of time but principally
on the requisite of intervening circumstances
which would render inequitable any grant of relief to the dilatory plaintiff. * * * For one to successfully assert the defense of laches, it must be
shown that there was a passage of time combined
with some prejudice to the party asserting the defense of laches. * * * Laches is concerned mainly
with the question of the inequity of permitting a
claim to be enforced and depends on whether the
plaintiff has been wanting in due diligence. “23
In Rofe, the Court found that the plaintiffs instituted
18 224 Mich App 203; 568 NW2d 378 (1997); leave to appeal
denied, 459 Mich 862; 584 NW2d 924 (1998).
19 Cooper, 349 Mich at 531-32.
20 Webb, 224 Mich App at 213.
21 126 Mich App 151; 336 NW2d 778 (1983) (after second
remand).
22 Id at 154. 23 115 Mich App 19, 25-26; 320 NW2d 276 (1982) (quoted in
Rofe, 126 Mich App at 154).
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suit against the defendants with reasonable promptness
after it was made evident to them that defendants intended permanent violations of the applicable deed restrictions. The Court held that the plaintiffs were not wanting
in due diligence and upheld the trial court’s conclusion
that plaintiffs were not guilty of laches.
The Court also confirmed the importance of determining the intentions of the parties when interpreting
deed restrictions.
When interpreting a restrictive covenant, courts
must give effect to the instrument as a whole. If
there is any doubt as to the exact meaning of the
restrictions, the court must consider the subdivider’s intention and purpose. Furthermore, the
restrictions must be construed in light of the general plan under which the area subject to those
restrictions was platted and developed. On the
other hand, restrictive covenants are to be construed strictly against those seeking enforcement
and all doubts are to be resolved in favor of the
free use of property. A court of equity will not
enlarge the scope of deed restrictions beyond the
clear meaning of the language employed.24
Kamphaus v Burns
Although unpublished, Kamphaus v Burns,25 a building restrictions case, provides a thorough review and
analysis of all three equitable exceptions.
The plaintiffs sought equitable and monetary relief
on the grounds that: (1) defendant failed to submit his
building plans to the Association’s Building and Use Restriction Committee in violation of their Bylaws; (2) defendant’s house violated the two-story height restriction
contained in his deed; and (3) defendant’s bay window,
porch, garage pillars, and chimney violated setback requirements of the deed restrictions. In response, defendant argued that: (1) he was not required to submit his
building plans to the Building and Use Restriction Committee but in any case, he did submit his plans; (2) the
1975 deed restrictions were invalid and unenforceable;
(3) if the deed restrictions were valid, he complied with
them; and (4) if his bay window, porch, garage pillars,
or chimney did violate a deed restriction, such violation
was subject to an equitable exception to enforcement.
24 126 Mich App at 157-58 (citations omitted).
25 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued Feb 26, 2009 (Docket No. 279962); leave to
appeal denied, 485 Mich 927; 733 NW3d 696 (2009).
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After some delays, eventually a thirteen-day bench
trial was conducted. During the course of the proceedings, the trial judge personally viewed defendant’s premises and the immediate vicinity. At its conclusion, the trial
court held that: (1) the 1975 amendments to the deed
restrictions were valid and enforceable against defendant;
(2) defendant did not violate the height restriction because the house was two stories and had some unfinished
attic space, not a third story; (3) the front porch, bay window, and portico of defendant’s house were architectural
features and thus not subject to the setback requirements
but even if they were they merely constituted “technical violations” that did not result in substantial harm to
plaintiffs; and (4) defendant’s garage and chimney violated the restrictions but they too constituted merely “technical violations.” The trial court found the restrictions
had been selectively enforced and that the plaintiffs had
unduly delayed in seeking to enforce those restrictions.
Accordingly, the trial court dismissed plaintiffs’ complaint
with prejudice, a decision affirmed on appeal.
Many of the findings in favor of the defendant concerned the application of the equitable exceptions to the
enforcement of otherwise valid deed restrictions. The
Court found that the location of the defendant’s garage
pillars were, given the circumstances, a technical violation
and did not warrant injunctive relief. The Court then
addressed the chimney (which was built 28 feet beyond
where the restrictions required it to be) and decided that
its construction was not a slight deviation. It was not a
“technical violation,” and also did not qualify as a changed
circumstance exception for the neighborhood, so it did
not qualify to remain under the first two exceptions.
However, the Court did conclude that laches applied. The
testimony established that the plaintiff saw defendant’s
chimney stand in rough condition for at least three or four
weeks before it was bricked. In fact, no opposing action
was taken against the chimney while it was under construction. The Court noted that the lawsuit was filed over
seven months after it became clear the defendant intended
a permanent violation of the applicable deed restriction.
The Court determined this was too long to wait, and allowed the defendant to keep his chimney based on the
application of the third Cooper v Kovan exception.
III. Impact of Terrien v Zwit on the Cooper v
Kovan Equitable Exceptions
In 2002, the Michigan Supreme Court issued a decision that cast uncertainty on the usefulness of the first
Cooper v Kovan exception that a technical violation of a
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deed restriction (coupled with a lack of substantial injury)
would still present on opportunity to avoid an otherwise
valid and enforceable deed restriction.
Terrien v Zwit
In Terrien v Zwit, the plaintiffs (neighborhood residents) sought an injunction prohibiting the continued
operation of “family day care homes” in their community.
The defendants each operated a licensed family day care
home pursuant to MCL 722.111 et seq. in their homes
within the subdivision. The trial court granted summary disposition in favor of the defendant day care homes,
holding that a covenant precluding the operation of a
family day care home was contrary to the public policy
of the state of Michigan. The court of appeals affirmed.
On review, the Michigan Supreme Court reversed for the
plaintiffs. The Court concluded that the relevant covenants restricting day cares did not violate Michigan public
policy and were enforceable.
The subdivision was subject to the following covenants:
26
1. No part of any of the premises above described may or shall be used for other than private residential purposes.
***
3. No lot shall be used except for residential
purposes.
***
14.No part or parcel of the above-described
premises shall be used for any commercial, industrial, or business enterprises nor the storing of
any equipment used in any commercial or industrial enterprise.27
In response to an argument that this was a mere “technical violation” without substantial harm, the Court held
that the plaintiff’s right to maintain the restrictions is not
affected by the extent of the damages he might suffer for
their violation. The Court held:
It is of no moment that, as defendants assert, the
“family day care homes” cause no more disruption than would a large family or that harm to
the neighbors may not be tangible. As we noted
in Austin v VanHorn, 245 Mich 344, 347; 222
NW 721 (1929), “the plaintiff’s right to maintain
the restrictions is not affected by the extent of the
damages he might suffer for their violation.” This
all comes down to the well-understood proposition that a breach of a covenant, no matter how
minor and no matter how de minimis the damages, can be the subject of enforcement. As this
Court said in Oosterhouse v Brummel, 343 Mich
283, 289; 72 NW2d 6 (1955), “’If the construction [13] of the instrument be clear and the
breach clear, then it is not a question of damage,
but the mere circumstance of the breach of the
covenant affords sufficient ground for the Court to
interfere by injunction.’”28
A quick read of this statement by the Court might
suggest that it is renouncing the 45 year old “technical
violation and absence of substantial injury” exception to
the enforcement of deed restrictions; i.e., that no matter
how minor the violation, and no matter how small the
scope of actual injury to the plaintiff, the restriction must
be enforced. However, a closer analysis of the language
used and the context provided reveals a different message.
The opinion reminds the judiciary that it has “sufficient
ground” to interfere by injunction–not that it necessarily
must do so in all cases.
Village of Hickory Pointe Homeowners Ass’n v Smyk
The Michigan Supreme Court concluded that a covenant barring any commercial or business enterprises was
broader in scope than a covenant permitting only residential
uses. The Court found significant the fact the restrictions at
issue not only prohibited commercial or business activities,
but they also prohibited the mere storing of any equipment
used in such activities. The Court found this a strong and
emphatic statement of the restrictions’ intent to prohibit any
type of commercial or business use of the properties.
Two years after Terrien, the court of appeals in Village
of Hickory Pointe Homeowners Ass’n v Smyk29 followed the
Terrien analysis. The defendants had built a deck without
first receiving permission from the homeowners association in clear violation of the deed restriction requirement.
The trial court found for the defendants, holding that the
breach was de minimis, a “technical violation” without any
substantial injury to the plaintiff. Quoting Terrien, the
26 467 Mich 56; 648 NW2d 602 (2002).
28 Id at 65 (citations omitted; emphasis added).
27 Id at 59-60.
29 262 Mich App 512; 686 NW2d 506 (2004).
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court of appeals reversed: “It is a ‘well-understood proposition that a breach of a covenant, no matter how de minimis the damages, can be the subject of enforcement… .
If the construction be clear and the breach clear, then it is
not a question of damage, but the mere circumstance of
the breach of the covenant affords sufficient ground for
the Court to interfere by injunction.’ Because the covenant and the breach thereof are both clear in this case,
plaintiff was entitled to summary disposition as a matter
of law.”30
This opinion represents a strict application of the
Terrien standard. It seems to reach a conclusion without
regard to whether the violation of the restriction was substantial. The reported analysis ended once a breach of a
clear restriction was found. While the panel was unanimous in reversing the trial court, Judge Jansen concurred
in the result only.
V. Unpublished Cases after Terrien v Zwit
The reports that Terrien sounded the death knell for
the “technical violation” (and absence of substantial damage) exception to enforcement of valid deed restrictions
seem to have been greatly exaggerated. Although the
precedential relevance of this Michigan Supreme Court
case is obviously recognized and followed, as demonstrated by Village of Hickory Pointe Homeowners Ass’n, Michigan courts still exercise their independence and flexibility
when deciding if a violation of a deed restriction is substantial and worthy of equitable relief.
Kamphaus v Burns
The court in Kamphaus v Burns,31 discussed earlier,
analyzed both Terrien and Village of Hickory Pointe Homeowners Ass’n and determined that the “technical violation”
exception to enforcement of deed restrictions was still
available. The Kamphaus court reasoned:
In Terrien, the defendants were operating day
care businesses in their homes despite a covenant
permitting only residential uses and prohibiting
commercial, industrial, or business uses. … Because the operation of a day care facility was a
substantial deviation from the deed restriction—
not a slight deviation—the covenant could be
enforced even if only de minimis damages were
30 Id at 516 (citations omitted).
31 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued Feb 26, 2009 (Docket No. 279962); leave to
appeal denied, 485 Mich 927; 733 NW3d 696 (2009).
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sustained. In other word, the first element of the
technical violation exception was not met.32
The Kamphaus court also addressed the finding in Village of Hickory Pointe Homeowners Ass’n that the “technical
violation” exception is no longer viable law. In that case,
the defendants built a deck without first receiving permission from the homeowners association in clear violation
of the deed restriction requirement. The Kamphaus court
found: “The cases of both Terrien and Village of Hickory
Pointe Homeowners Ass’n clearly involved substantial violations of deed restrictions. Accordingly, the respective
Courts held that the amount of damages sustained as a
consequence of the substantial violations was irrelevant.”33
The Kamphaus court determined: “Because the case law
that plaintiffs have set forth in support of their position
that the “technical violation” exception is no longer viable
law, and our own research, has failed to substantiate that
claim, we reject that position.”34
Oakwood Meadows Homeowners Ass’n v Urban
In Oakwood Meadows Homeowners Ass’n v Urban,35
plaintiff sought enforcement of restrictions with respect to
a pump house built by defendants on their property, and
lost. The appellate court reversed for the plaintiff, finding: (1) the pump house violated restrictions that expressly forbid sheds and outbuildings and took away from the
purpose of the general scheme of the development (i.e., it
was not a mere technical violation) and (2) laches did not
apply because evidence did not demonstrate a lack of due
diligence or unreasonable delay by plaintiff or prejudice to
the defendant. The Court noted the Terrien rule, but decided the case simply by interpreting the facts differently
from the trial court.
Leclear v Fulton
In Leclear v Fulton,36 defendant filed a counterclaim
alleging that the plaintiff violated the subdivision recorded restrictions that required approval of their house
plans before construction and failed to get approval before
removing trees. The trial court found no cause of action
32 Id at 19, 20 (emphasis added).
33Id at 21.
34Id.
35 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued June 26, 2014 (Docket No. 316193).
36 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued May 20, 2008 (Docket No. 277225).
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(i.e., it found mere technical violations), but the court of
appeals disagreed in part. The Court analyzed Terrien and
related cases, confirming that a court may grant equitable
relief. The breach of the covenant regarding the trees was
remanded for further proceedings. As for the requirement
to review house plans, the Court decided that no such restriction existed. A court will not infer a restriction that is
not expressly stated in the controlling documents.
Thom v Palushaj
Thom v. Palushaj37 was another case of the defendants
building a house in clear and knowing violation of deed
restrictions, thus putting themselves at risk of being ordered to tear down and start over. The defendants built
closer to the neighbor than allowed and closer to the front
lot line than allowed and failed to submit and/or obtain
approved plans. The trial court nonetheless agreed with
the defendants that the violations were mere technical
violations and should not be enforced. The Court of Appeals disagreed. It acknowledged that Webb defined technical violations as slight deviations that do not add to or
take from the purposes of the development scheme, and
noted that the viability of the technical exception “appears
questionable in light of the Supreme Court’s decision in
Terrien.” However, the Court did not have to resolve that
controversy since it concluded that the defendants’ violations of the deed restrictions were obviously so substantial, and the restrictions were not waived, that an equitable exception to enforcement was never a reasonable
consideration. The case was sent back for the trial court
to fashion a remedy consistent with Webb (Aft Sec Rem).
Johnson v Kristin
Johnson v. Kristin38 was somewhat factually similar to
Terrien. The defendants operated a commercial bed and
breakfast in a residential neighborhood in violation of recorded building and use restrictions. The court reviewed
Webb, Terrien, and Village of Hickory Pointe Homeowners
Ass’n. The defendants argued that even if their operation
was in violation of the restrictions, an injunction shutting
them down was inequitable since “no substantial harm
has resulted to plaintiff or others.” The Court flatly disagreed, finding that a B&B in a subdivision designated
for residential use was more than a “slight deviation” from
the general scheme of development set forth in the restrictions. The opinion mentioned the Terrien rule that breach
of a covenant can be the subject of enforcement, but that
was not the basis for the Court’s order of a permanent
injunction against the defendant’s operations.
Dean v. Hanson
In Dean v Hanson, 39 the plaintiff subdivided a parent parcel into five buildable parcels. One of the parcels
contained an easement for “common usage,” apparently
intended for a future donation to a nature conservancy.
After all parcels were sold, the defendants recorded a claim
of interest against this area, resulting in plaintiff’s lawsuit.
The complaint alleged violations by the defendants of various building and use restrictions. The defendants counterclaimed for declaratory relief, including that the plaintiff be barred from developing the area of common usage.
Both sides filed motions for summary disposition. The
trial court ruled in favor of the defendants, and against
the plaintiff, in both motions.
On appeal, the relief sought by defendants’ counterclaim was affirmed when the Court found that under the
doctrine of reciprocal negative easement, the defendants
had valuable property rights in the area of “common usage” referenced in the easement.
In denying the plaintiff’s appeal that defendants
breached various recorded restrictions requiring injunctive relief, the Court extensively reviewed Webb and Cooper v Kovan. It also addressed the recently issued Terrien
opinion, and specifically quoted the phrase about how a
breach,no matter how minor, or damages, no matter how
de minimis, provide the bases to enforce a valid deed restriction. However, the Court nevertheless undertook a
thorough Cooper v Kovan analysis as to each of the alleged
violations, ultimately finding that each of them fell within
one of the three exceptions to enforcement.
IV. Conclusion
In sum, the Cooper v Kovan exceptions are alive and
well, subject to a Terrien cautionary review.
37 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued Aug 23, 2007 (Docket No. 268074).
38 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued March 6, 2007 (Docket No. 266649).
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39 Unpublished opinion per curiam of the Michigan Court of
Appeals, issued Nov 18, 2003 (Docket No. 241317).
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